If the judge wants to get political, he should run for office

"Judges cannot and should not operate in the political sphere." - Barry Albin offering advice that he has ignored during his judicial career,

Supreme Court Justice Barry Albin speaks at the New Jersey State Bar Association's annual meeting and convention held in Atlantic City.

(Patti Sapone/The Star-Ledger)

Former Gov. Brendan Byrne made news on these pages the other day when he wondered out loud whether state Sen. Barbara Buono might consider stepping down and letting someone else take her place as the Democratic contender for governor.

I’ve got a suggestion on just who that someone should be: Barry Albin. The state Supreme Court justice clearly wants to be in politics. That became obvious last week when Albin gave a speech that got him a standing ovation at the state Bar Association convention in Atlantic City.

Albin didn’t mention the Republican incumbent by name, but the entire address was an attack on Gov. Chris Christie for his decision not to reappoint Judge John Wallace to the Supreme Court in 2010.

Albin argued that the framers of our 1947 constitution did not intend for judges to be removed from the bench by a governor who disagrees with their decisions.

"A judge should not be concerned about whether doing justice is a bad career move," Albin said.

That’s a worthy standard. But Albin also endorsed another standard: "Judges cannot and should not operate in the political sphere."

By that standard, the court has been off track since 1976. That was the year when Chief Justice Richard Hughes led the court to impose the income tax that he had failed to get enacted during his two terms as governor.

The constitution states that the revenue from that tax should be distributed by formulas enacted by the Legislature. But over the years, the court has taken over the distribution of most of the revenue. That is a major contributor to our perennial property tax crisis.

Now the Democrats are attacking Christie because he has failed to solve that crisis. So you can hardly blame him for going to the root of it. "The only way to change the court is to change its members," he said after deciding not to renominate Wallace.

In his speech, Albin argued that the framers intended for the governor to use the reappointment power only to remove judges who had proved themselves inept or morally unfit for the job.

The record of the constitutional convention says otherwise. State Sen. Frank "Hap" Farley argued against lifetime tenure because: "If, perchance, there be one individual or two individuals appointed who are not qualified — they may be great lawyers but not have the judicial temperament — you would have them for the rest of their entire days."

A great lawyer who lacks judicial temperament? That’s a perfect description of Albin himself. In his days as a criminal defense attorney, Albin was seen by his peers as among the best advocates in the state.

Unfortunately, he continued in the role of advocate after he was appointed to the Supreme Court by Gov. Jim McGreevey in 2002. The most prominent opinion Albin authored was in a 2006 case in which the court commanded the Legislature to enact a law creating civil unions. In it, Albin wrote, "New Jersey’s courts and its Legislature have been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians."

At the forefront?

Imagine someone stating that the umpires were in the forefront of a World Series win by the Yankees. That would be an attack on the integrity of the umpires.

Similarly, Albin unwittingly attacked the integrity of his own court when he cast its members as advocates rather than arbiters.

That shows exactly the lack of judicial temperament that Farley anticipated. And Christie’s response was exactly the remedy the framers envisioned.

What the framers didn’t envision is the reaction Senate President Steve Sweeney had to Christie’s decision not to reappoint his fellow Gloucester County Democrat. Sweeney has blocked Christie from filling the Wallace seat and another opening on the high court.

Christie has made Sweeney’s stance a centerpiece of his campaign.

And with Buono lagging more than 30 points behind in the polls, Democrats worry that Christie’s coattails could cost them control of the Senate.

If that happens, he can name whomever he desires to the court.

So if Buono takes Byrne’s advice, I can’t think of a better choice to take her place than Albin. If the judge wants to remain in the forefront, then perhaps it’s time to get off the bench and into the game.

ADD:Here's another Albin decision from left field, if I may continue my baseball metaphor. A reader mentioned the case of Winters v. North Hudson Regional Fire and Rescue in which a firefighter sued to get his job back after he was canned for abuse of sick leave.

It turns out the guy had two other public jobs he performed while he was collecting sick leave:

On June 13, 2006, Winters applied for and was granted sick leave for a panic disorder, certified to by a psychiatrist who was treating him. He collected full pay for the duration of his leave, which lasted until October 24, 2006. During that period, Winters worked — he claimed on the recommendation of his psychiatrist — part time, logging 192.25 hours as an electrical inspector/code enforcement officer for the Township of Old Bridge, and 84.5 hours as a construction official for the City of Long Branch. Collectively, he earned more than $10,000 from those jobs.

The court majority decided that Winters should stay fired. Albin dissented, accepting Winters' argument that he could challenge his firing on the grounds he was a whistleblower.

Read the case and you will see he was indeed something of a whistleblower. Big deal. Collecting sick leave from one public job while performing another public job should be grounds not just for firing but for prosecution.